Divorce Relocation Laws

Can I take the kids and move to another state?

Divorce and child custody disputes are, understandably, very emotional and can be overwhelmingly stressful. This, along with factors such as parental job re-location and availability of child-care elsewhere, a parent to desire to simply take the kids and move out of state. Is this possible in Virginia? Yes, but it’s not as simple as sounds, and the answer depends not only on the specific facts and circumstances of each case, but also on where in the process of separation and/or divorce the parents are.

Contact Locke & Quinn online, or by phone (804) 285-6253, to speak with a divorce lawyer and arrange a consultation.

Does it matter if I have an order providing for custody and visitation?

Yes.  Until there is a court order regarding custody and visitation for their children, each parent is presumed to be acting in the child’s best interests, including when making decisions regarding where to live.  Once an order with respect to custody and visitation has been entered, relocation may be violation of the court order and may result in a the relocating parent being held in contempt of court or make them subject to criminal proceedings.   Although every custody order is different, after an order has been entered, to be safe, the parent wanting to relocate with the children should obtain court permission before doing so.

Custody, Generally

There are basically two types of custody: “physical’ and “legal.” “Physical custody typically refers to with whom the child lives.  “Legal custody” means having the rights and responsibilities associated with decisions regarding the child’s upbringing. The parent with whom the child primarily lives (who has physical custody of the child) is referred to as the “custodial parent.” The non-custodial parent is the parent with whom the children reside less than with the custodial parent.

Criminal Implications

Any and all disputes for child custody and visitation are resolved looking to the children’s best interests. Under Virginia law, parental child-napping is usually a misdemeanor unless the child is taken outside the Commonwealth, at which time it becomes a felony and subject to the provisions of the Parental Kidnapping Prevention Act (PKPA) of 1980. Va. Code Ann. § 18.2-49.1 states that any person who knowingly, wrongfully and intentionally withholds a child from the child’s custodial parent in a clear and significant violation of a court order respecting the custody or visitation of such child, provided such child is withheld outside of the Commonwealth, shall be guilty of parental abduction punishable as a Class 6 felony. Va. Code Ann. § 18.2-47 states as a separate offense that any person who, by force, intimidation or deception, and without legal justification or excuse, seizes, takes, transports, detains or secretes the person of another, with the intent to deprive such other person of his personal liberty or to withhold or conceal him from any person, authority or institution lawfully entitled to his charge, is deemed guilty of “abduction.” Depending on the circumstances of the case, this charge can be punishable as a Class 6 Felony and contempt of court.

Factors the Court Considers in Awarding Custody & Considering Relocation

The court will always look to the children’s best interests in resolving child custody and visitation disputes. There is no inference that the mother or the father is the better parent. In considering relocation, Virginia courts will generally allow relocation where the relocation is in the child’s best interest. However, the benefit to the child must be separate from the benefit to the custodial parent.  For example, if the custodial parent has remarried and their new spouse’s employer transfers them to another jurisdiction, the custodial parent must still prove that the relocation is in the child’s best interest.

Relocation – Procedural Issues

After an order has been entered, a party intending to relocate to another state must give the court and other party thirty days’ advance written notice of intent to relocate and any intended change of address. Va. Code Ann. § 20-124.5.   However, if the other parent objects to the child’s relocation, the court proceedings can take six months or longer.  In the meantime, in the discretion of the court, the child may be permitted to relocate, pending final determination by the court.  Of course, the court may decide in its discretion to maintain the status quo by enjoining (preventing) the custodial parent from relocating prior to a final determination.

Contact Us

Divorce attorneys at Locke and Quinn can help you with regard to your custody issues – including relocating or preventing the other parent from relocating. The attorneys at Locke & Quinn have knowledge of the evidence required and the procedural rules that need to be followed in relocation cases. Contact our Richmond family law firm today.

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